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National Safety Summit Getting the Dynamics Right 27 August 2009

National Safety Summit Getting the Dynamics Right 27 August 2009. Stephanie Mayman C, Western Australian Industrial Relations Commission. What this session will cover. harmonisation to date; why harmonisation; objects of the process; several issues arising from the reports; and

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National Safety Summit Getting the Dynamics Right 27 August 2009

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  1. National Safety Summit Getting the Dynamics Right27 August 2009 Stephanie Mayman C, Western Australian Industrial Relations Commission

  2. What this session will cover • harmonisation to date; • why harmonisation; • objects of the process; • several issues arising from the reports; and • questions

  3. Harmonisation Aims • nationally consistent laws (modern & updated) • in developing consistent OSH laws there should be no reduction or compromise in standards for legislative health and safety controls; • consultative approach ensuring input from stakeholders; and • harmonised legislation to be accompanied by standard regulatory approaches

  4. What is harmonisation? • harmoniousall one, concordant, cosmic, harmonic, homonymous, homophonic, homophonous, in accord, one, symphonious, true, unanimous, unisonant, unisonous;congenial acceptable, to someone's taste, unobjectionable, up one's street;fitting appropriate, becoming, befitting, condign, congruous, decent, due, felicitous, fit, meet perfect, proper, ready-made, right, suitable, • adverb7 accordchime, concur, consort, correspond, dovetail, go with, harmonise, key in, live up to, match, sympathise, tone (in) with; fit assort, comport with, consist with, get along (or on), get on (or along), go with, interlock, intermesh, match, mate, mesh, satisfy, suit; Bibliography: The Macquarie Encyclopaedic Thesaurus Online, August 2009

  5. Harmonisation to Date Harmonisation of OHS laws commenced with: • Productivity Report ‘04 recommendations; • ‘uniform national ohs laws in all jurisdictions’; • ‘agreement by all jurisdictions to adopt without variation national ohs laws and regulations’; • became Directive of Council of Australian Governments (COAG) - 2006; • election promise of current Government; and • 2008 Review Panel established …

  6. Harmonisation - the panel process • Panel appointed in April 2008 to conduct review; • 242 submissions were made and wide consultation with stakeholders; • final report delivered 30 January 2009; • WRMC released report 13 February 2009; and • Drafting of harmonised laws underway …

  7. Harmonisation - the drafting process • the Panel’s reports may not provide the final wording on the model Act but provide a series of recommendations from which draft laws are being produced; • many have asked what further opportunity, if any, will there be for public consultation on the draft Bill; • the answer to that is as directed by Safe Work; • however the panel’s task has concluded; and • the drafting is in the hands of Safe Work Australia who will report to the WRMC …

  8. Who oversees the process? The new OHS laws will be overseen by: • Safe Work Australia; • input by the stakeholders; • Workplace Relations Ministers’ Council; • IGA framework; and • Council of Australian Governments (COAG); The process ahead will ultimately determine the outcome of harmonised OHS laws in Australia.

  9. Proposed Timeline • 1st September 2009 (draft proposal to WRMC); • 11th September 2009 - WRMC to consider draft proposal); • thereafter 6 weeks public comment; and • further consideration by WRMC in December 2009

  10. Commencement Date Nationally harmonised OHS laws and associated regulations to commence by December 2011

  11. The Panel’s Reports 2008/2009 • list of recommendations; • the body of the reports • to avoid false impressions do not rely on specific recommendations or issues in isolation. • The recommendations are inter-related and inter-dependant

  12. Focus on Several of the Report’s Recommendations • reasonably practicable; • worker; • officers; • discrimination, victimisation and coercion; • OHS representatives; • issue/dispute resolution; and • penalties

  13. Reasonably practicable • ‘reasonably practicable’ to qualify most duties of care (other than for officers, workers and others at the workplace); • ‘reasonably practicable’ to be defined in the Model OHS Act; and • The definition will, in part: • refer to what can reasonably be done; • refer to ‘weighing up’ relevant matters; • clarify reference to hazard, potential harm and risk; and • clarify relevance of cost (misunderstood in the past) • the definition will not specify or define the issue of control

  14. Workers and others • Workers • broad definition of worker – anyone performing work in a business or undertaking; • duty to take reasonable care for themselves and others; and • duty to co-operate with the person conducting the business or undertaking regarding OHS • Other persons at the workplace (new) • similar duty to workers • visitors, public and those authorised to enter the workplace

  15. Other obligations • Person conducting business or undertaking is required to: • employ or engage qualified person, Workplace Health and Safety Officer, to advise, where person conducting business or undertaking ordinarily has more than 30 employees; • monitor workplace and health of workers; and • notify incidents (responsibility of person conducting the business or undertaking)

  16. Consultation • Heath and Safety Representatives: • powers and entitlements include right to direct others to cease work; • right to issue provisional improvement notices (PIN’s); • PIN’s subject to review by inspector; and • work groups may include more than one business or undertaking.

  17. Issue/Dispute Resolution • ‘issue’ defined as any matter remaining unresolved after consultation at workplace; this triggers the procedure • consultation process determined by workplace participants or, in the absence of such agreement, by default procedure in model Act; • relevant union(s) may be involved in process; and • issues subject to review by relevant court or tribunal

  18. Discrimination, victimisation and coercion • discrimination, victimisation and coercion prohibited; • includes protection and remedies for all persons who have been exercising a role under the model Act; • 2 avenues to proceed against person alleged to have carried out proscribed conduct - criminal and/or civil; • person alleged to be in breach bears the onus of proving that the reason alleged was not the dominant (criminal courts) or operative (civil courts) reason for the conduct; • reasonable precautions defence; • coercion offence subject to ‘reasonable excuse’; and • unions to have standing to represent a claimant

  19. Unions • Authorised representatives of unions to have right of entry: • immediately for investigating suspected breach; • 24 hours notice for advice or consultation; • 24 hours notice for request for documents; and • subject to right of entry permit and member eligibility requirements, protections and accountability (consistent with Fair Work Act 2009 (Cth) or relevant State legislation)

  20. … unions • no power to prosecute under model laws; • unions may, as others currently in some jurisdictions, seek a review (by DPP) of a decision by the regulator not to prosecute or alternatively, by an inspector not to issue a notice; and • unions may become involved in issue resolution process, at the request of worker

  21. Penalties Categories based on degree of ‘culpability’ and risk/degree of harm Corporations: $3,000,000 Officers: $600,000 / 5 years jail Workers: $300,000 / 5 years jail Category 1 Corporations: $1,500,000 Officers: $300,000 Workers: $150,000 Category 2 Corporations: $500,000 Officers: $100,000 Workers: $50,000 Category 3

  22. What should you be doing now? Business, regulators, employees, OHS specialists and unions should prepare for any future changes, first assessing their current position in relation to existing OSH laws: • the key objective in developing a model Act is to harmonise OSH laws in Australia; • consider and prepare for the changes from the primary duty of care and definitions (particularly the breadth of ‘worker’); • ‘the undertaking’ what does it mean to the workplaces you attend/work at; • prepare for the changes to consultation, right of entry, OHS representatives and committee provisions; and • dispute resolution of OHS issues (what will this entail?) • officers should ensure that corporate governance frameworks and processes meet the new duty of care of an officer.

  23. Potential difficulties • issue of industry coverage and the move that occurred away from OHS laws to industry specific e.g. transport and mines (final decisions include portfolios in addition to coverage by Workplace Relations Ministers’ Council); • fear that provisions will be lost if they are transposed into regulations; and • the passage of the laws through individual Parliaments.

  24. Harmonisation provides an opportunity To lead to an improved system which provides: • a change in culture; • a change in the law that reflects a rapidly changing work environment; • laws that are flexible; and • laws that will last.

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